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Patricia A. O'Malley
Social Policy & Programs Consulting ~ Community Matters
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Senate Rules and the Confirmation Process
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September 9, 2018
Judge Brett Kavanaugh is currently amid his Senate confirmation hearing for the US Supreme Court. This nomination has more drama than most, but the process is the same, although there was a minor spat about the rules.
Our Constitution requires that certain presidential appointments occur with “the advice and consent of the Senate” and permits some appointments by the president alone. (Article I. Section 5. Clause 2) The president appoints thousands of people to government positions. More than 2,000 require Congressional confirmation. They include all cabinet secretaries, cabinet-level positions, and other department positions several steps down into the bureaucracy. Supreme Court justices and federal judges are appointed for life. The president makes those appointments only when there is a vacancy. Ambassadors and other positions required by law are also appointed.
The process begins when a person is considered for a particular position. Individual names can come from two sources - a person can ask for a job, or someone else can recommend her/him. The president seeks advice from many sources including Senators, his staff, and trusted colleagues and friends.
First, the people under consideration undergo rigorous examination of their affairs. The White House staff checks their personal, professional, and financial backgrounds for their qualifications and looks for any conflict of interest or illegal or unethical behavior in the past. Presidents don’t like to be, but sometimes are, surprised when embarrassing things emerge in the confirmation hearings.
Once someone is formally nominated, the relevant Senate committee holds hearings to evaluate the nominee’s credentials so that the members can form their own opinions. The Judiciary Committee holds the hearings for federal judges. Committee staff members also conduct their own background investigations.
The committee chairs control the hearings. Since the Republicans hold the majority in the Senate, all committee chairs are Republicans. Sen. Chuck Grassley (IA) chairs the Judiciary Committee. Lower-level nominees are usually confirmed with little or no difficulty, but the highest-level positions face the most scrutiny. The questioning can be quite intense. It’s your worst nightmare of a job interview. The committee may interview other witnesses in addition to the nominee.
C-Span TV televises the hearings, and news reports show portions of the most important ones. You can still see all of Kavanaugh’s hearings on their website. Transcripts of the hearings are available to the public, although it may take several months for them to be ready.
After the hearings, the committee votes on whether to recommend that the full Senate confirm the nomination. The nomination can be marked up to the floor with a recommendation to confirm or deny the appointment, or with no recommendation either way. The process often involves personal and political favoritism and grudges.
Majority Leader Sen. Mitch McConnell (KY) schedules the floor votes or, in the case of Judge Merrick Garland, refuses to do so. Eventually, the full Senate votes to confirm or deny each appointment. Senate rules require only a simple majority of votes for confirmation. There are only 99 senators now since, at this writing, Jon Kyl has not yet been sworn in as John McCain’s replacement. But he surely will be sworn in time for a vote. If a tie occurs, the Constitution requires that the Vice President Mike Pence) cast the deciding vote.
If confirmation fails, the president must nominate someone else and the process begins again. If confirmation succeeds, the person gets the job. If Kavanaugh is confirmed, Supreme Court Chief Justice John Roberts will administer the oath of office and Kavanaugh will serve until he retires, dies, or is impeached (which is highly unlikely).
I strongly recommend that you watch some of the hearings on C-Span II. It’s quite an interesting process and can involve more drama than a soap opera.
The Constitution authorizes each house of Congress to make its own rules of procedure. Congress has chosen to operate primarily through the committee system, and to give a great deal of power to political party leaders. Senate rules permit filibusters. House rules do not. The House and Senate have no control over each other’s rules.
In Audacity of Hope, Barack Obama said that then-Senator and President Pro Tempore Robert Byrd (D-WV) met with every new senator and gave the same advice – “Learn the Rules”. Byrd’s knowledge of the rules was legendary. He gave each senator a copy of his book on the history of the Senate and those rules. He told them that they can’t get any legislation passed without the rules. Obama said that Byrd was right.
Senate rule changes must be voted upon by all senators.
Senators who violate rules can be expelled from the Senate.
Each committee makes its own rules for the order in which each senator speaks at a hearing, how much time each one gets, etc. Committee rule changes must be voted upon by all committee members.
Last week, Grassley and Sen. Cory Booker (D-NJ) had a disagreement when Booker threatened to release certain documents which Grassley unilaterally declared to be confidential. Grassley warned Booker that he could be expelled, but Booker said he was willing to do it because the public must see what’s in the documents. Booker did release the documents, and there was another round the next day.
However, Cory Booker did not defy Senate rules. Grassley made the rule to forbid the release all by himself, with no discussion or vote. Therefore, Grassley's rule was invalid. Cory Booker broke no rule. He will not be expelled.
But Grassley should be expelled because HE broke the rule about making rules.
And people think this stuff is boring.
For more information:
Read the Constitution
Supreme Court of the United States
The US Senate